Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016 Page 1 of 7

OPINION

ATTORNEY FOR APPELLANT

John S. Terry

Cate, Terry & Gookins, LLC

Carmel, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Dustin Todd Garner,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 9, 2016

Court of Appeals Case No.

29A04-1602-CR-361

Appeal from the Hamilton 

Superior Court

The Honorable William J. Hughes, 

Judge

Trial Court Cause No.

29D03-1510-F6-9119

May, Judge.
Court of Appeals of Indiana | Opinion 29A04-1602-CR-361 | September 9, 2016 Page 2 of 7

[1] Dustin Todd Garner appeals his conviction of Level 6 felony battery with 

moderate bodily injury.1

 The sole issue he raises is whether the trial court 

abused its discretion when it declined to instruct the jury on the lesser included 

offense of battery with bodily injury as a Class A misdemeanor. We affirm.

Facts and Procedural History

[2] On the morning of October 19, 2015, Patrick Knowles was walking to work 

when Garner, Mitch Randall, Taylor Meredith, and Matt Fisher approached 

him. Garner punched Knowles and broke his nose. Knowles twisted his ankle 

as he fell to the ground. Garner continued to hit Knowles for what seemed to 

Knowles “like forever.” (Tr. at 143.) Garner “picked [Knowles’] head up and 

hit it against the concrete [and Knowles] could see the blood pooling from his 

nose.” (Id.) Then, Garner and the others “walk[ed] back, it looked like to the 

apartments.” (Id. at 144.) 

[3] After his assailants left, Knowles “worked [himself] up to actually stand” and 

went to work. (Id. at 145.) However, once there, he started worrying the same 

men might attack his girlfriend. He called her but she did not answer. He did 

not call the police. He left work and started walking back towards his 

apartment, albeit by a slightly different route, “just in case.” (Id. at 147.)

 

1 Ind. Code § 35-42-2-1(b)(1) and Ind. Code § 35-42-2-1(d)(1) (2014). Ind. Code § 35-42-2-1(d)(1) is now Ind. 

Code 35-42-2-1(e)(1) (2016).
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[4] Garner, Randall, and Fisher reappeared. This time, Garner “just walked up, 

didn’t say nothing [sic] . . . he hit [Knowles] way harder than the first [time 

and] knocked [him] down.” (Id. at 150.) Garner hit Knowles in the back of the 

head, kicked him, and stomped on him. Garner finally “walk[ed] off fast.” (Id.

at 153.) Randall and Fisher remained momentarily. Fisher kicked Knowles in 

the back of the head, and then they left. 

[5] Knowles was dizzy and “lucky that [he] was conscious but everything [was] 

blurry.” (Id.) He continued to his apartment but could “barely stand” when he 

got there. (Id.) His girlfriend called the police. The police called an 

ambulance. The ambulance transported Knowles to the hospital. Knowles’ lip 

required stitches, and he had a “small fracture to [his] nose.” (Id. at 155.) He 

was released later that same day, without pain medication. He testified the pain 

“was ten,” (id. at 156), on a scale of one to ten, “with ten being the most 

excruciating pain you can imagine, 1 being mild annoyance.” (Id.) He was 

having difficulty moving his mouth and was advised to eat only soft foods.

[6] Based on Knowles’ description and a police dog’s tracking, the police located

Garner and the other men involved in the altercation. When they located 

Garner, his mouth was bleeding and “there were abrasions to his hands.” (Id.

at 209.) Police arrested Garner and the State charged him with Level 6 felony 

battery resulting in moderate bodily injury. During a jail call, Garner was 

recorded saying “I broke both my hands on his face, fucking broke his face, split 

his lip wide the fuck open.” (Id. at 332.) 
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[7] At trial Garner’s attorney tendered a jury instruction for Class A misdemeanor 

battery resulting in bodily injury, as a lesser included offense of battery resulting 

in moderate injury. The State objected and the trial court sustained the 

objection, stating, “There is no basis in the world that a reasonable jury could 

find that there is not moderate bodily injury in this case as that is defined by 

law. Substantial pain. [sic]” (Id. at 359.) The jury found Garner guilty. 

Discussion and Decision

[8] The trial court did not abuse its discretion in declining to instruct the jury on 

battery resulting in bodily injury. A trial court should include an instruction 

regarding a lesser included offense if the lesser offense “may be established ‘by 

proof of the same material elements or less than all the material elements’

defining the crime charged,” Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995) 

(quoting Ind. Code § 35-41-1-16(1)), or “the charging instrument alleges that the 

means used to commit the crime charged include all of the elements of the 

alleged lesser included offense,” id. at 567, and the trial court finds a serious 

evidentiary dispute regarding an element that distinguishes the lesser offense 

from the greater offense. Id.

[9] The trial court determined there was no serious evidentiary dispute about the 

element that distinguishes the misdemeanor from the felony, the degree of 

injury Garner caused Knowles. Where the trial court has determined there is 

no serious evidentiary dispute, we treat that finding with deference and review 

it for an abuse of discretion. McEwen v. State, 695 N.E.2d 79, 84 (Ind. 1998). A 
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decision is an abuse of discretion when it “is clearly against the logic and effect 

of the facts and circumstances.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

2007). 

[10] A “serious evidentiary dispute” exists if, based on “the evidence presented in 

the case by both parties,” a “jury could conclude that the lesser offense was 

committed but not the greater.” Wright, 658 N.E.2d at 567. Garner was 

charged with having inflicted “moderate bodily injury,” which is “any 

impairment of physical condition that includes substantial pain.” Ind. Code § 

35-31.5-2-204.5 (2014). Garner’s requested instruction was for battery resulting 

in “bodily injury,” which is defined as “any impairment of physical condition, 

including physical pain.” Ind. Code § 35-31.5-2-29. 

[11] No Indiana appellate court has heretofore considered when there is a serious 

evidentiary dispute about whether a victim experienced “pain” or “substantial 

pain.”2

 There are presumably fact patterns under which a trial court might 

abuse its discretion by declining to instruct a jury about battery resulting in 

bodily injury as a lesser included offense, but we must affirm the trial court’s 

decision in this case because the injuries Knowles received could have justified 

a charge of Level 5 felony battery resulting in serious bodily injury. See Ind. 

Code § 35-31.5-2-292 (“Serious bodily injury” defined); see also, e.g., Dausch v. 

State, 616 N.E.2d 13, 16 (Ind. 1993) (broken nose, stitches, and bruising satisfy

 

2 The statutes criminalizing battery with moderate bodily injury and defining moderate bodily injury became 

effective in 2014. 
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criteria for “serious bodily injury”); Phares v. State, 506 N.E.2d 65, 69 (Ind. Ct. 

App. 1987) (“eight stitches . . . required to close the head wound . . . was 

sufficient to establish serious bodily injury”). 

[12] When he reached his apartment, Knowles could “barely stand,” (Tr. at 153), his 

lip required stitches, and he had a “small fracture to [his] nose.” (Id. at 155.) 

On seeing him, the police immediately called for an ambulance. It took “a 

good week” for the pain to subside. (Id. at 160.) Knowles testified the pain 

“was ten,” (id. at 156), on a scale of one to ten, “with ten being the most 

excruciating pain you can imagine, 1 being mild annoyance.” (Id. at 155.) In 

addition to Knowles’ testimony about his injuries, several police officers 

testified as to the extent of Knowles’ injuries and the State introduced 

photographs of Knowles’ injuries that corroborated the testimony. 

[13] The State entered evidence that Garner, on a call recorded from the jail, stated 

he had “broken both [his] hands on [Knowles’] face, fucking broke [Knowles’] 

face, split [Knowles’] lip wide the fuck open.” (Id. at 332.) Garner did not 

present evidence that the injuries he inflicted on Knowles would have caused 

only “physical pain” rather than “substantial pain.” Compare Ind. Code § 35-

31.5-2-204.5 (defining “moderate bodily injury”) with Ind. Code § 35-31.5-2-29 

(defining “bodily injury”).

[14] In light of these facts, there was no serious evidentiary dispute about whether 

Knowles experienced substantial pain following the battery. Therefore, the trial 
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court did not abuse its discretion when it declined to give the proposed jury 

instruction. 

Conclusion

[15] As the trial court did not abuse its discretion by declining Garner’s tendered 

instruction on a lesser included offense, we affirm.

[16] Affirmed.

Kirsch, J., and Crone, J., concur.